Wall v. Zeeb

• Decision Date: 26 October 1967
• Docket Number: No. 8388,8388
• Parties: Eugene R. WALL and Judith B. Wall, Plaintiffs and Respondents, v. AL ZEEB and the State Bonding Fund, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 779

153 N.W.2d 779

Eugene R. WALL and Judith B. Wall, Plaintiffs and Respondents, v. AL ZEEB and the State Bonding Fund, Defendants and Appellants.

No. 8388.

Supreme Court of North Dakota.

Oct. 26, 1967.

Rehearing Denied Nov. 17, 1967.

Syllabus by the Court

1. An appellant has the burden of presenting a record affirmatively showing error.

2. Instructions on issues or matters not warranted by the evidence are erroneous and when calculated to mislead the jury are prejudicial. Record is examined and it is held that the challenged instruction summarizing from the pleadings is warranted by the evidence.

3. In an assault and battery action against a policeman, alleging mental incompetency for the job, admission of letter in evidence bearing on mental condition of policeman, written less than five years before the alleged assault, is a matter largely resting in the discretion of the trial court.

4. In an assault and battery action against a police officer seeking to establish liability for use of unreasonable or unnecessary force, the presumption is that the policeman performed his duty correctly and acted with ordinary caution and good faith, which presumption prevails until overcome by definite evidence to the contrary. It was, therefore, prejudicial error to instruct the jury that the burden of proof was on the policeman to prove he did not use unnecessary or unreasonable force.

5. It is held, for reasons stated in the opinion, that the fountain pen tear gas projector designed to fire a .38 caliber tear gas cartridge, safe to use at close range (up to three feet) and not designed to fire fixed or factory-loaded ammunition, is not a firearm.

6. It constitutes prejudicial error to instruct a jury, in a liability suit against a police officer for assault and battery, that a fountain pen tear gas projector in the hands of an on-duty police officer is a firearm and that, where a firearm in the hands of a police officer discharges by accident and injures another person, the police officer is presumptively negligent in the handling of the firearm as the instructions ignore the presumption that a police officer performs his duty correctly and acts with ordinary caution and good faith, which presumption prevails until overcome by definite evidence to the contrary.

7. Prior statements of a witness consistent with present testimony are admissible where his testimony is assailed or impeached by charges of recent fabrication and the prior consistent statements were made before the claimed fabrication.

8. An ophthalmologist who testified he was familiar with tear gas, the treatment, and its effect on eyes from his studies and experience, and who knew the history and facts observed by him in the course of his professional attendance upon the plaintiff, who had suffered tear gas injury to his eyes, was qualified to state his opinion as to cause, reaction, and effect of delay in initial treatment of injury, although he had not made a chemical analysis of the material found in the plaintiff's eyes.

Rausch & Chapman, Bismarck, for appellant Al Zeeb.

Helgi Johanneson, Atty. Gen., and Gerald VandeWalle, Asst. Atty. Gen., Bismarck, for appellant The State Bonding Fund.

Zuger, Zuger & Bucklin, Bismarck, for plaintiffs and respondents.

TEIGEN, Chief Justice.

The plaintiffs, husband and wife, by this action seek to recover compensatory and exemplary damages for alleged assault and battery upon the plaintiff Eugene R. Wall by the defendant Al Zeeb, a police officer. After a verdict and judgment for the plaintiffs, the defendant Al Zeeb moved for a new trial on the grounds which fall into two major groups--errors of law occurring at the trial and excessive damages appearing to have been given under the influence of passion and prejudice. The trial court denied the motion for a new trial, whereupon the defendants Zeeb and the State Bonding Fund appealed from the order denying the motion for new trial.

The complaint alleges that at about 1:00 a.m. on April 19, 1964, at Wilton, North Dakota, the plaintiff Eugene R. Wall was sleeping on property owned by his mother. The defendant Al Zeeb, as the chief of police of the city of Wilton, entered on the property and struck, beat, and battered Wall while he was sleeping, using fists, weapons, and deadly force likely to cause serious injury or death. The defendant Al Zeeb placed a firearm containing a tear gas shell against the face and eyes of the plaintiff Wall and exploded a tear gas shell directly into Wall's face and eyes. Plaintiff alleges that the acts of Al Zeeb caused him to permanently lose sight of both of his eyes and that he suffered bruises, open wounds, burns and other injuries to his face, head, and upper body. The complaint alleges that if the defendant Al Zeeb attempted to make a lawful arrest, it was made by using more force than was reasonably necessary and subjected the person arrested to unnecessary risk of serious harm.

Plaintiff alleges that the defendant Al Zeeb knew that he had been declared by many psychiatrists and medical doctors as being a person of unusal aggressive and dangerous tendencies who could not be trusted with a dangerous weapon, and that he had been relieved of duties during his military service, treated in government hospitals, and given a discharge for mental instability, making him unfit for military service involving the carrying of a weapon. It is alleged that the defendant had been discharged from his duties as a police officer for the city of Bismarck, North Dakota, for the reason of unfitness and mental instability which made him a hazard to others; that he knew he had received a discharge from the police force of Bismarck, at his own request, and was awarded a pension from the police officers' pension fund because of mental problems and that this condition made it impossible for him to discharge the duties of a police patrol officer; and that the defendant had knowledge of these facts at the time of this incident.

The complaint also alleges that bodily harm and injuries to the plaintiff Wall were aggravated by the defendant Zeeb's gross negligence or willfulness in failing to secure medical aid in a reasonable time after Wall had suffered injuries administered by the defendant Zeeb and that, after the injury, the defendant Zeeb falsely claimed a lawful arrest had been made. The complaint alleges that all of said acts on the part of the defendant Zeeb were grossly negligent, wanton and malicious, and were done with reckless disregard for the safety of the plaintiff Wall.

The plaintiff Eugene R. Wall prays judgment for compensatory damages of $100,000, plus punitive damages of $100,000 and demands judgment against the State Bonding Fund, which it is alleged in the complaint is surety for the defendant Zeeb as a police officer, in the amount of the coverage, to wit, $1,000.

The plaintiff Judith B. Wall joins in the complaint and alleges that plaintiff Eugene R. Wall is her husband; that, by the acts of the defendant Zeeb, she has lost the services of her husband for herself and their two-year old daughter; and that she has lost society, companionship, conjugal affections and consortium which she had prior to her husband's injuries and prays damages in the amount of $20,000.

The defendant answered the complaint denying every allegation therein, except as otherwise admitted, qualified or explained. The answer alleges that, at about the time set out in the complaint, the plaintiff Wall was in an intoxicated condition and in possession of an open receptacle of beer in a motor vehicle; that the defendant Zeeb came upon the plaintiff and, in an attempt to assist him and determine his identification, the plaintiff Wall refused to communicate or identify himself, whereupon the defendant Zeeb placed him under arrest for vagrancy.

The answer alleges that the plaintiff resisted arrest and fought with the defendant, striking and hitting him while the defendant Zeeb was in the course of performing his duties as chief of police. In order to perform his duties, the said Zeeb, in completing the arrest of the plaintiff and bringing him to justice, and in order to protect himself and the people of the city of Wilton, followed the plaintiff into a house where, in the course of a further struggle, a tear gas weapon in the possession of the defendant Zeeb was discharged, causing some of the gas to go into the face and eyes of the plaintiff; that the defendant Zeeb did only such acts as were necessary in the performance of his duties as chief of police of the city of Wilton and, in apprehending an escapee from his custody, he used only such force as was necessary to bring the plaintiff under control. The answer also alleges the defendant Zeeb took all reasonable steps to arrange medical care for the plaintiff. He prays that plaintiff's complaint be dismissed.

In the specifications accompanying the defendant's notice of motion for a new trial, he assigns only errors of law and excessive damages which appear to have been given under the influence of passion or prejudice. The specifications assigning errors of law fall into three groups--errors in instructions given, errors denying motions for mistrial, and errors in the reception and exclusion of evidence. These specifications do not mention the insufficiency of the evidence. Our review of the order denying the motion for a new trial is limited to errors specified and does not include a review of the sufficiency of the evidence, except as may be necessary in reviewing the question of damages.

The appellant has the burden of presenting a record affirmatively showing error. Mills v. Roggensack, N.D., 92 N.W.2d 722; Robbins v. Robbins, N.D., 70 N.W.2d 37.

The defendant claims the court erred in instructing the jury as to the defendant's mental incompetency for the reason that the allegations of the complaint were not sustained by a sufficient quantum of evidence to take the issue to the jury....